In Johnson v. Poway Unified School District (9th Cir. 2011) ___ F.3d ___, the Ninth Circuit Court of Appeals reversed a trial court ruling and held thePowayUnifiedSchool District(District) did not violate a high school teacher’s free speech rights when it ordered him to remove two banners containing religious references from the walls of his classroom.

For approximately two decades, Bradley Johnson, a math teacher in the District, had displayed two banners in his classroom measuring approximately seven feet by three feet, one with the phrase “In God We Trust,” “One Nation Under God,” “God BlessAmerica,” and the other with the phrase “All Men Are Created Equal, They Are Endowed By Their CREATOR.” Mr. Johnson’s principal ordered him to remove the banners after an inquiry from a fellow teacher and a decision by the school board directing him to remove the banners. The principal told Mr. Johnson the banners were impermissible because they conveyed a Judeo-Christian viewpoint. Mr. Johnson sued the District, asserting violations of his constitutional rights. The trial court held the District impermissibly restricted Mr. Johnson’s speech based on viewpoint. For more on the lower court decision in the Johnson case, please see Client News Brief No. 11, April 2010.

On appeal, the Ninth Circuit reversed the decision and ruled the District did not infringe on Mr Johnson’s First Amendment free speech rights by ordering him “not to use his public position as a pulpit from which to preach his own views on the role of God in our Nation’s history to the captive students in his mathematics classroom.”

The Ninth Circuit found the lower court erred in applying a pure First Amendment forum-based analysis, rather than the Pickering analysis developed by the United States Supreme Court to measure the constitutionality of a government employer’s curtailment of a public employee’s speech. (Pickering v. Board of Education of the Township High School District (1968) 391U.S.563.) Based on the precedent of the Pickering case, the court looked at several factors. The first two factors are: (1) whether the speech involved a matter of public concern; and (2) whether the speech was made as a private citizen or as a public employee.

Mr. Johnson’s organization of the banners and their selected emphasis on the words “God” and “Creator” drove the court to its conclusion that the banners concerned religion and were therefore a matter of public concern, satisfying the first factor of the analysis.

The court then considered whether Mr. Johnson “spoke as a private citizen” or as a “public employee.” If he spoke as any ordinary citizen might, then the court would continue its application of the Pickering test. But if Mr. Johnson’s speech “owe[d] its existence” to his position as a teacher, then he spoke as a public employee, not as a citizen, and the District could limit his speech.

The court found that Mr. Johnson did not act as a citizen when he went to school and taught class, took attendance, supervised students, and regulated their comings-and-goings; he acted as a teacher – a public employee. Noting that teachers hold positions of trust and authority, and that they interact with students with impressionable young minds, the court found that teachers necessarily act as public officials for purposes of a Pickering inquiry when at school or school functions, in the general presence of students.

The court held that Mr. Johnson took advantage of his position to press his particular views upon the impressionable and “captive” minds before him. For these reasons, the court concluded that Mr. Johnson spoke as an employee, not as a citizen, and the District was free to limit his speech. The court did not go any further in its Pickering analysis since the second factor was not met. Finally, the court held the District had not violated the Establishment Clause, which requires a separation of church and state, because Mr. Johnson’s banners were clearly religious.

This case provides guidance on the issues of employee speech in the classroom and employee religious freedom. Specifically, it demonstrates the test that the 9th Circuit will use in determining whether a school district has lawfully limited an employee’s speech. The facts of each case must be analyzed individually to determine whether an employer’s actions could implicate an employee’s free speech rights.

If you have any questions, please contact one of our eight offices located statewide or consult our website.

In Theiler v. Ventura County Community College District (2011) ___ Cal.App.4th ___, the court affirmed that a basketball coach was not entitled to an evidentiary hearing before his termination for cause. The court ruled that an athletic coach’s ancillary duties, such as planning practices, recruiting high school students, attending games, and managing the team, were not comparable to the duties of a classroom instructor. Consequently, the court found that the basketball coach was properly classified as a temporary employee without due process rights because the coach was employed to teach less than the specified percentage of the hours per week considered a full-time assignment, exclusive of the time he spent performing ancillary duties.

In Theiler, the Ventura County Community College District hired a part-time basketball coach. The employment agreement specified that he would teach a basketball course, and that the coach was a temporary employee pursuant to Education Code section 87482.5 because the time he spent teaching the course was less than 0.6 of the full-time equivalent (FTE) of a regular employee. Section 87482.5 has since been amended to increase this percentage to 67%. The coach was also a member of the teachers’ union. The collective bargaining agreement (CBA) with the union provided that coaches would be compensated for ancillary duties performed outside of class with a stipend, and that the District did not consider ancillary duties in calculating FTE. Finally, the CBA stated that physical education is a laboratory teaching assignment, and such assignments are given 2/3 the value of a lecture teaching assignment for purposes of calculating FTE.

The District terminated the coach’s employment after an investigation revealed the coach had submitted false transcripts to obtain eligibility for student athletes, granted favors to nonresident athletes, and interfered with the investigation of his wrongdoing. As a temporary employee, the coach was released without an evidentiary hearing. The coach initiated a lawsuit, contending that he should have been afforded a hearing because he was actually a contract employee due to the actual time spent coaching and performing his ancillary duties, which required a greater time commitment than the teaching hours specified in his employment contract.Californialaw categorizes community college academic employees as regular, contract, or temporary, and only regular and contract employees are entitled to due process before termination for cause.

The court rejected the coach’s argument, concluding instead that the 60% requirement applied only to the coach’s hours of actual, contracted-for teaching per week, as opposed to all hours worked by the coach, because the coach’s ancillary duties were not comparable to those of a classroom instructor. The court further emphasized that the District and union had collectively bargained to compensate ancillary duties with a stipend instead of including them in FTE calculations, and to define hours teaching physical education as “laboratory teaching assignments” that are not treated as full hours when calculating FTE.

This decision clarifies that the non-classroom teaching duties of athletic coaches are not comparable to those of classroom instructors, and therefore only contracted-for teaching hours may be counted for purposes of determining a part-time academic employee’s classification. However, the outcome in Theiler was also heavily influenced by the specific language in the CBA between the District and the union. Implementation of the following strategies may assist community college districts’ efforts to classify particular positions as temporary:

(1) When drafting contracts for academic employees hired on a part-time basis (for athletics and other subject areas), consider including a clear explanation of the parties’ calculation of teaching hours justifying the temporary classifications under section 87482.5.

(2) If a district treats laboratory teaching assignments differently than regular lecture assignments, determine whether such laboratory teaching assignments are defined and whether hours spent in such teaching assignments are discounted in comparison to regular hours for purposes of determining an employee’s FTE.

(3) Consider including language in the CBA for the academic bargaining unit that excludes stipended or ancillary duties from consideration as teaching hours for purposes of calculating an employee’s FTE under section 87482.5.

If you have any questions about this decision or how to implement the above strategies, please contact one of our eight offices located statewide or consult our website.

On August 26, 2011, the California Attorney General issued an opinion (___ Ops.Cal.Atty.Gen. ___, No. 10-702) that, under the provisions of the Ralph M. Brown Act, a majority of the members of a city council may not attend a private tour of the facilities of a water district that provides services to the city for the purpose of acquiring information regarding those services. A majority of the members of a city council may, however, attend such a tour if it is properly noticed as a public meeting, subject to certain conditions.

The Brown Act isCalifornia’s open meetings law, intended in part to require the actions and deliberations of public agencies to take place publicly. (Gov. Code § 54950.) A “meeting” for purposes of the Brown Act is defined as “any congregation of a majority of the members of a legislative body at the same time and location, including teleconference location . . . to hear discuss, deliberate, or take action on any item that is within the subject matter jurisdiction of the legislative body.” (Gov. Code § 54952.2(a).) The Attorney General noted that it is well settled that this definition of “meeting” encompasses informal deliberative and fact-finding sessions.

The Attorney General presumed that the tour of the water district facilities “would include the acquisition of information relevant to the water services that the district provides, or may provide, to the city” and, as such, was public business constituting a “meeting” if a majority of the council were to participate. Accordingly, it would be a violation of the Brown Act to conduct the meeting privately.

However, the Attorney General noted that a majority of the city council could lawfully attend a tour of the facilities if the tour were held as a properly noticed public meeting, provided that the purpose of the meeting was to tour the facilities and the topics raised during the meeting/tour were limited to items directly related to the facilities being inspected. This was based on the Attorney General’s reading of the Brown Act that a legislative body may meet outside of its boundaries “[t]o inspect real or personal property which cannot be conveniently brought within the boundaries of the body’s jurisdiction, so long as the topic of the meeting is limited to items directly related to the real or personal property.” (Gov. Code § 54954(b)(2).)

We note that opinions of the Attorney General’s office are advisory only and are not legally binding. Nevertheless, the Attorney General’s opinion provides an important reminder that the Brown Act applies where a majority of the members of a public agency meet to discuss public business, which may include a tour of facilities. Such a tour can take place outside of the agency’s jurisdiction if the meeting only addresses the facilities or property in question. Public agencies should be aware of the risk of a potential Brown Act violation any time a quorum “meets” to discuss public business, and may wish to consult with legal counsel before doing so either in a remote location or on a tour.

If you have any questions, please contact one of our eight offices located statewide or consult our website.

CalPERS has clarified the definitions of “payrate” and “special compensation,” which are both included in “compensation earnable” for purposes of determining the retirement payments of members. Payrate is clarified in a newly adopted regulation, Title 2 of the California Code of Regulations (CCR), section 570.5. (Click here for the full text of section 570.5.) Special compensation has been further defined in Title 2, CCR section 571(b), as amended. (Click here for the full text of section 571.)

To determine a member’s payrate, prior regulations had restricted payrate to amounts provided on a publicly available pay schedule, but did not specify what the schedule was required to include. The newly enacted section 570.5 requires that each pay schedule include a number of elements, the most significant of which include position title for every employee position, payrate for each position, and time base for each payrate. (See full text of section 570.5 for complete requirements.)

In the event that an employer fails to meet these requirements, CalPERS may, in its sole discretion, determine the member’s payrate. CalPERS may take into account any information that it deems relevant in order to set the payrate.

Section 571(b), as amended, clarifies what items CalPERS will recognize as “special compensation.” CalPERS will recognize special compensation in a labor policy or agreement if the written document meets a number of requirements. Most significantly, the document must include the conditions for payment of the item of special compensation and the eligibility requirements and amount for each special compensation item. (See full text of section 571(b) for complete requirements.)

Failure to comply with these new requirements could result in CalPERS determining a lower “compensation earnable” for employees. If the lower compensation earnable is used to determine final compensation, employee benefits could be reduced at retirement.

If you have any questions about the new regulatory requirements, or would like assistance with reviewing your existing pay schedules or labor agreements for compliance, please contact one of our eight offices located statewide or consult our website.

On August 3, 2011, the Governor signed into law Assembly Bill (AB) 123, a bill aimed at limiting disruptions that threaten students’ immediate physical safety when arriving at, attending, or leaving school. Penal Code section 626.8 previously made it a misdemeanor for any person to cause disruption at school, remain after being asked to leave, reenter after being asked to leave, or otherwise establish a continued pattern of unauthorized entry. AB 123 adds to section 626.8 by making it a misdemeanor to willfully and knowingly create a disruption with intent to threaten the immediate physical safety of students in preschool through grade 8.

Prior to the enactment of AB 123, the scope of section 626.8 was analyzed in an opinion by the Ninth Circuit Court of Appeals. In Center for Bio-ethical Reform, Inc. v. Los

Angeles County Sheriff Dept. (9th Cir. 2008) 533 F.3d 780, as junior high students were arriving at school, representatives from the Center for Bio-ethical Reform, Inc. (CBER) drove vehicles with graphic photographic images of aborted fetuses on public streets around the school’s perimeter. As a result, students stopped on sidewalks and “momentarily” stood in the middle of streets to view the images, a few students cried, a group of students planned to throw rocks at the signs, and at least one teacher discussed the images in class. The sheriff’s department arrived to handle the incident and, citing section 626.8, asked the representatives of CBER to leave with their signs.

The Ninth Circuit held that application of section 626.8 was improper, specifically noting that the activists’ conduct was not sufficiently disruptive to be restricted under section 626.8.

In direct response to the Ninth Circuit’s decision, AB 123 expands section 626.8 to include “any person who comes into any school building or upon any school grounds, or adjacent street, sidewalk, or public way, and willfully and knowingly creates a disruption with the intent to threaten the immediate physical safety of any pupil in preschool, kindergarten or any grades 1 to 8 inclusive, arriving at, attending, or leaving from school grounds.” Notably, former section 626.8’s express provision, that it “shall not be utilized to impinge upon the lawful exercise of constitutionally protected rights of freedom of speech or assembly,” remains in the law following the enactment of AB 123. As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

School districts are cautioned that section 626.8 does not apply to schools that operate grades 9 through 12 exclusively, and that the constitutionality of the revised code section has not yet been tested. Further, given statements made in the Ninth Circuit’s

Center for Bio-ethical Reform, Inc. holding, it is possible that even revised section 626.8 would not apply to the type of speech at issue in that case. Specifically, the Ninth Circuit noted that an audience’s response to the content of speech is not a justification for limiting that speech, even when the targeted audience is children.

If you have any questions regarding AB 123 or other campus disruption or speech laws, please contact one of our eight offices located statewide or consult our website.

In a recent decision, the Public Employment Relations Board (PERB) affirmed that, in order to file a “failure to bargain” charge, a public employee union must actually demand to bargain effects of a non-negotiable decision, even if the employer never gave formal notice of the decision. The case was decided under the Ralph C. Dills Act which applies to state employees; however, the decision was based on PERB precedent decided under the Educational Employment Relations Act (EERA) and has implications for public school employers.

In CCPOA v. State ofCalifornia(Department of Corrections & Rehabilitation, Avenal State Prison) (2011) PERB Decision No. 2196-S, a dispute arose over the Avenal State Prison’s (AVP) unilateral change to its policy for conducting unannounced random searches of all persons entering the AVP grounds. TheCaliforniaCorrectional Peace Officers Association (CCPOA) first learned of the policy change when the new policy was implemented in May 2009. AVP did not provide formal notice of the change to CCPOA and, once the policy was implemented, CCPOA did not request to bargain over the effects of the policy change. Instead, CCPOA filed a PERB charge claiming that AVP failed to bargain the policy change and its effects. PERB held the decision to change the policy was non-negotiable, and that CCPOA could not charge that AVP failed to bargain over the effects of the policy change because CCPOA never communicated its interest in bargaining over the effects.

PERB’s decision is a reminder that “an employee organization is entitled to reasonable notice and an opportunity to bargain over the ‘reasonably foreseeable’ negotiable effects of a non-negotiable decision.” However, in certain circumstances, a public employer may be excused from providing the union with notice of a change in nonnegotiable policy that may have negotiable effects. This includes situations where formal notice is not given but the employee organization received actual notice of a decision (through its membership) and when there is no evidence of negotiable effects resulting from the decision. As this decision shows, PERB will not allow a union to claim a “failure to bargain” in such cases unless the union has timely made a request to bargain that clearly identifies the effects or impacts that the management decision had on a negotiable matter.

If you have any questions about this decision or about the duty to bargain in general, please contact one of our eight offices located statewide or consult our website.

Assembly Bill (AB) 1269, which was signed by Governor Brown on July 25, 2011 requires that, as of January 2012, the order of rehire for laid off classified employees be determined by seniority. Under the current language of Education Code section 45308, school districts have presumed that classified employees should be rehired in the reverse order that they were laid off. However, as explained more fully below, this conflicts with Education Code section 45298 which can be read to require rehiring on the basis of seniority. AB 1269 is meant to remedy this inconsistency.

Under normal circumstances, employees are laid off in order of seniority and rehired in the “reverse order,” which is also by seniority. However, school districts implementing layoffs in multiple years have experienced situations where the last person laid off had less seniority for vacant positions than individuals laid off in earlier rounds of layoff. This generally occurs when the employee has seniority in a classification other than the one from which the employee was laid off. The following is an example of such a situation, as referenced in the written analyses of the Assembly Committee on Education and the Assembly Committee on Public Employees, Retirement and Social Security:

In the first year, Employee 1 is laid off from her position as an Office Assistant in which she has six years of seniority. In the second year, Employee 2 is laid off from his position as a Senior Office Assistant in which he has one year of seniority. Employee 2 also has two years of seniority in the lower Office Assistant classification which, under Education Code section 45308 means that Employee 2 has three years of seniority in the Office Assistant position. In the third year, an Office Assistant position becomes vacant.

In this example, reemployment based upon the reverse chronological order of layoff will have different results from reemployment based on the order of seniority. Using the reverse order of layoff, Employee 2 would have a right to be reemployed in the vacancy because he is the last employee laid off. Under reemployment on a seniority basis, Employee 1 would have greater reemployment rights because her six years of seniority in the Office Assistant class are greater than Employee 2’s three years of seniority.

AB 1269 corrects this inconsistency by amending Education Code section 45308 to require that reemployment be in seniority order.

If you have any questions about this legislation or about the rehire rights of employees in general, please contact one of our eight offices located statewide or consult our website.